The lonely Kansas Constitution

I was impressed and glad to see this month's copy of the Journal of the Kansas Association for Justice (September 2010) included an article by Daniel E. Monnat and Paige A. Nichols titled "The Loneliness of the Kansas Constitution." Here is an excerpt from the introduction:

Today the original handwritten, eight page document [the Kansas Constitution] lies safely in the archives of the Kansas State Historical Society. A single rotating page is displayed under glass in the Kansas Museum of History. And what has become of this document in the Kansas courts? With few exceptions, it appears to have been relegated to the archives there, as well. 

Over the past half-century, Kansas' state constitution has come to play second fiddle to the federal constitution in our courts. The rights that many free-staters died facedown in the mud to secure are rarely treated as sovereign rights independent of the federal constitution. Time and again the Kansas Supreme Court has acknowledged its authority "to interpret our Kansas Constitution in a manner different than the United States Constitution has been construed," and yet the Court has "not traditionally done so."

The article lays out the history and policy behind state constitutionalism and begins to teach how to raise a state constitutional claim in district court. So get a copy and read it. The KSC is right and wrong. It not only has the authority to independently interpret the state constitution. It has the duty to do so.

[Update: here is "Part II" written by Dan and Paige in the May 2011 KAJ journal regarding how to raise state constitutional arguments!]